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Judgment
Manish Pitale, J
In these two petitions, the parties are the same. In one of the petitions, the Petitioners have simply sought a direction to the Court of Civil Judge
Senior Division at Vasco to dispose of the pending suit in a time-bound manner, within a period of six months. The other petition challenges order
dated 06.03.2021 passed by the aforesaid Court, whereby applications at Exhibits 68 and 79 have been disposed of. The application at Exhibit 68 was
an application filed by the Respondents (Original Defendants) under Order 7 Rule 11 of the Code of Civil Procedure (CPC) and Exhibit 79 was an
application filed by the said Respondents under Order 1 Rule 2 of the CPC, for a direction to the Petitioners (Original Plaintiffs) to elect amongst
themselves a single Plaintiff to proceed with the suit. The Petitioners are aggrieved, for the reason that while disposing of the said application vide
impugned order dated 06.03.2021, the aforesaid Court has directed the Petitioners to elect amongst themselves as to who shall continue with the suit
and that the other Plaintiffs could take necessary recourse to file fresh suits in order to seek specific performance from the Respondents i.e. the
Original Defendants. According to the Petitioners, the aforesaid Court erred in applying the relevant provisions of the CPC, while disposing of the
applications.
The facts in brief leading to filing of the present petitions are that the Petitioners filed Special Civil Suit No.25/2016/E against the Respondents i.e.
Original Defendants seeking specific performance of agreements executed between the Petitioners on the one hand and the Defendants on the other,
as also seeking liquidated damages from the Respondents. The Petitioners claim that they had individually entered into agreements with the developer
i.e. Respondent No.5 for purchasing units/offices/shops in a commercial complex being developed by the said Respondent on the land belonging to the
Respondent Nos.1 to 4. According to the Petitioners, the said agreements formed part of the same series of transactions. On this basis, the Petitioners
stated the details of the individual agreements pertaining to the Petitioners, the amounts paid in furtherance of the same and their readiness to pay the
balance amount, for a direction to the Respondents to execute sale deeds in their favour. The Petitioners also stated the amount of liquidated damages
that they individually were seeking from the Respondents before the Court below.
In the aforesaid suit, the Respondents filed an application at Exhibit 69 for rejection of plaint on the ground of non-payment of adequate Court fees
and they also filed the aforesaid application at Exhibit 79 under Order 1 Rule 2 of the CPC, on the basis that there was misjoinder of causes of action
on the part of the Petitioners in filing the suit on behalf of all the Petitioners.
The Court below took into consideration the rival submissions and referred to the relevant provisions of the CPC. On the question of rejection of
plaint, the Court below found that non-payment of adequate Court fee was a technical deficiency which could be cured by a direction for payment of
necessary Court fee. But, insofar as the application under Order 1 Rule 2 of the CPC was concerned, the Court concluded that the individuals in the
aforesaid suit being different, the subject matter of their grievances pertained to different agreements and they were also claiming damages of
different amounts, thereby indicating that if the suit was allowed to proceed, it would lead to inordinate delay and embarrassment. It was found that
the suit in the form in which it was filed by the Petitioners was not practical and that it would be difficult to prove the individual claims of each
Petitioner in one suit. On this basis, the Court below, by the impugned order, held that the Petitioners shall elect amongst themselves as to which
Petitioner shall continue with the suit and further directed that the other Petitioners could then take necessary recourse for filing fresh suits to seek
decrees of specific performance against the Respondents, in respect of the individual units.
Aggrieved by the said order, the Petitioners filed the present writ petition, wherein notice was issued and the learned Counsel for the rival parties
were heard at length.
Rule. Rule made returnable forthwith. Heard finally with the consent of the learned Counsel appearing for the rival parties.
Ms. A. Agni learned Senior Counsel appearing for the Petitioners submitted that the Court below erred in disposing of the application at Exhibit 79,
in the manner indicated above. It was submitted that the Court below failed to appreciate the true purport of Order 1 Rule 2 of the CPC and the
scheme under Orders 1 and 2 of the CPC, as regards the parties to the suit and the frame of the suit. According to the learned Senior Counsel
appearing for the Petitioners, on a proper application of the said provisions of the CPC, the Court below ought to have directed that the suit could
proceed in the manner in which it was filed and evidence pertaining to each Plaintiff could be taken up separately while considering and disposing of
the suit as it is. It was submitted that there was no reason discernible from the impugned order as to why it could be said that if the suit was permitted
to proceed in the manner in which it was filed, it would cause embarrassment or delay of the trial. The findings rendered by the Court below were not
in terms of the provisions of law reflected in Orders 1 and 2 of the CPC. It was submitted that the direction given by the Court below in the impugned
order would result in only one of the Petitioners (Plaintiffs) being able to pursue the suit for specific performance of agreement, while the others would
have to file fresh suits, unnecessarily complicating the matter and leading to the other Petitioners facing the possibility of objection of delay and
limitation being raised against them. On this basis, it was submitted that the Court below ought to have appreciated that the individual agreements
pertaining to units in the same commercial complex executed between the Petitioners and the Respondent No.5, were part of the same series of acts
or transactions and that therefore, there was no legal impediment in entertaining the suit in the manner in which it was filed by the Petitioners.
In support of the contentions raised on behalf of the Petitioners, the learned Senior Counsel relied upon the Judgments of the Hon'ble Supreme
Court in the case of Prem Lala Nahata and Another Vs. Chandi Prasad Sikaria(2007) 2 SCC 551 and Hema Khattar and Another Vs. Shiv Khera
(2017) 7 SCC 716, as also Judgment of the Nagpur High Court in Parashramsao and others Vs. Hiralal s/o Adku Patil AIR (34) 1947 NAGPUR 86.
On the other hand, Respondent No.2 in person appearing for himself and the Respondent No.1, as also Mr. V. Fernandes, learned Counsel
appearing for Respondent No.5, supported the impugned order passed by the Court below. It was submitted that the frame of the suit filed by the
Petitioners before the Court below was defective because individual, separate and independent causes of action were sought to be wrongly clubbed
together on behalf of the Petitioners, which was impermissible in law. It was submitted that the frame of the suit was such that the procedure of
framing issues and recording of evidence would be unnecessarily delayed and that therefore, the Court below was justified in directing the Petitioners
to elect one of them to pursue the suit and for the others to take recourse to the remedy of filing fresh suits in the matter. It was submitted that each
individual Petitioner as the Plaintiff was seeking a decree of specific performance against the Respondents (Original Defendants) and there was also
a prayer for liquidated damages, which in the case of each of the Petitioners, was a different amount, thereby indicating that recording of evidence
would be cumbersome as the cause of action of one Petitioner had no nexus with that of the other. On this basis, it was submitted that the Court
below was justified in passing the impugned order while disposing of application at Exhibit 79.
Before proceeding to consider the contentions raised on behalf of the rival parties, it would be appropriate to refer to the relevant provisions of
law.
Order 1 of the CPC pertains to parties to suits. Order 1 Rule 1 of the CPC provides that all persons can be joined as Plaintiffs in one suit where
the relief sought arises out of the same act or transaction or series of acts or transactions. It is also stipulated that if such persons filed separate suits,
common question of law or fact would arise. Order 1 Rule 2 of the CPC provides that when a Court finds that joinder of Plaintiffs may embarrass or
delay trial of a suit, the Court can put the Plaintiffs to their election or order separate trials or make such other order as may be expedient.
Order 2 of the CPC pertains to the frame of a suit. Order 2 Rule 2 provides that a suit has to include the whole claim while Order 2 Rule 3
pertaining to joinder of causes of action provides that several causes of action may be united against the same Defendant and where Plaintiffs are
jointly interested in causes of action against the same Defendant, such causes of action may be united in the same suit.
In the context of the aforesaid provisions of the CPC, in the case of Prem Lala Nahata Vs. Chandi Prasad Sikaria (supra), it has been held that
even if there is a perceived defect in a suit, it cannot be said to be barred by law or liable to rejection. A reference is made to Order 2 Rule 6 of the
CPC, which provides that if there is a joinder of causes of action in one suit which may lead to embarrassment or delay of the trial, the Court can
order separate trials or make such other order that may be expedient in the interest of justice.
In the said case, the Hon’ble Supreme Court found that when the suits were based on combined transactions and the ultimate question for
decision pertained to the nature of transactions that was entered into by the Respondent therein with each of the appellants, it could not be said that
the same would lead to embarrassment or delay in disposing of the suit. It was specifically held that no direction for filing a fresh plaint could be issued
in such circumstances.
In the case of Hema Khattar Vs. Shiv Khera (supra), the Hon’ble Supreme Court held that it could not be said to be a mis-joinder of parties or
causes of action, even if the suit was jointly filed in the context of two consecutive agreements. In the case of Parashramsao Vs. Hiralal (supra), the
Nagpur High Court held that even if there were to arise separate issues pertaining to reliefs sought by the Plaintiffs and two causes of action had been
combined together, an order was not warranted for the Plaintiffs to elect one of the causes of action. It was specifically held that instead of separate
and distinct suits being filed, such a combined suit could be entertained and individual issues could be treated as sub-suits under the number of the
principle suit from which they spring. Thus, the interpretation of Orders 1 and 2 of the CPC pertaining to the parties to the suit and frame of the suit
indicates that even if separate causes of action are combined in a suit, such a suit could proceed wherein evidence pertaining to each individual
Plaintiff could be recorded and the suit could be disposed of as such.
In the present case, each of the Petitioners had entered into an agreement with the Respondent No.5 for purchasing units in the commercial
complex being developed by the said Respondent. The nature of the individual agreements and the clauses thereof were similar and the only
difference pertained to the amounts paid by each individual Petitioner and the quantum of liquidated damages claimed by each one of them. It can be
said that the grievances of the Petitioners in the present case arose out of the same series of acts or transactions undertaken by the Respondent No.5,
thereby indicating that there could not be a situation of embarrassment or delay of trial merely because the Petitioners filed a common suit for
redressal of their grievances. In any case, the Court below could certainly proceed with the matter and consider the case of each individual Petitioner
for the purpose of recording of evidence in the context of the grievances raised on behalf of the Petitioners against the Respondents. There is no
reason indicated in the impugned order passed by the Court below as to why it could be said that if the suit was permitted to proceed in the manner in
which it was filed, it would necessarily lead to embarrassment for the Petitioners or that it would lead to delay in the trial.
In such circumstances, the Court below could not have directed that the Petitioners should choose one of them to proceed with the suit already
filed and that the other Petitioners could take steps for filing fresh suits. This would unnecessarily lead to multiplicity of litigation, apart from the fact
that the other Petitioners would be rendered vulnerable to the objection of limitation in approaching the Court for redressal of their grievances. This
complication would unnecessarily arise if the impugned order is sustained. In any case, this Court finds that in terms of the law laid down in the
aforesaid judgments, the direction given in the impugned order cannot be sustained. Insofar as the question of rejection of plaint is concerned, the
Court below has correctly held that the objection regarding non-payment of adequate Court fees is technical in nature and the same can be cured by
payment of necessary Court fees.
In view of the above, the writ petition is allowed. The impugned order is quashed and set aside. The application at Exhibit 79 filed by the
Respondents under Order 1 Rule 2 of the CPC is dismissed.
Insofar as Writ Petition No.1708/2020 (F) is concerned, the same is filed only for a direction to the Court below for disposing of the suit in a time-
bound manner, within a period of six months. The prayer is innocuous and it would be in the interest of the rival parties that the suit is directed to be
disposed of expeditiously.
Accordingly, Writ Petition No.1708/2020 (F) is disposed of with a direction to the Court below to expeditiously dispose of Special Civil Suit
No.25/2016/E, preferably within a period of one year from today.
Rule made absolute in the above terms.